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Misinale v R [1999] TOLawRp 2; [2000] Tonga LR 322 (21 July 1999)

IN THE COURT OF APPEAL OF TONGA

Misinale

v

R

Court of Appeal, Nuku'alofa
Burchett, Tompkins, Beaumont JJ
CA 13/99

11 July 1999; 21 July 1999

Criminal procedure — leave to appeal out of time — not granted

Criminal procedure — indictment not bad for duplicity — single criminal enterprise

The applicant was charged with embezzlement contrary to the Criminal Offences Act (Cap 18) and was found guilty on 15 April 1999. He was sentenced to imprisonment for 3 years, of which he was to serve 8 months, the balance to be suspended for two years from the date of his release. On 23 July 1999 the applicant applied to the Court for leave to appeal out of time and for bail pending the hearing of that application and of the appeal. The Court dismissed both applications without a hearing. On 20 October 1999 the applicant filed applications to set aside the Court's decision on the appeal by the Crown against sentence; for leave to appeal out of time against conviction; and for bail pending hearing of the appeal.

Held:

1. It was entirely appropriate for the Solicitor General, as the legal adviser to the Crown, to act for the Attorney General, seeking leave to appeal on behalf of the Crown, and for the party appealing to be named as "Rex" meaning the Crown.

2. The application for leave to appeal was properly brought. Therefore the decision of the Court, granting the application for leave and allowing the appeal in part, was validly made.

3. It was apparent from the statement of the applicant that he regarded his activities as a continuing pattern of conduct over the relevant period. He did not seek further particulars of the charge which is not surprising as he himself had prepared the schedule showing each individual payment that made up the amount stated in the charge. There was no risk of an injustice in regarding the pattern of conduct as a single criminal enterprise. The Court did not regard the charge in the indictment to be bad for duplicity.

4. Even where the actions of an accused could be regarded as a pattern of conduct constituting a single criminal enterprise, it may be preferable, where a number of distinct acts were relied upon, such as where various amounts of money have been taken on different occasions, to lay separate counts in the indictment in respect of each distinct act. This would overcome any need for further particulars, ensure that the judge or jury considers the accused's culpability in respect of each act, and remove any possibility of the indictment being challenged for duplicity at the trial or on appeal.

5. No ground was made out for extending the time for appealing.

6. The application for bail pending hearing of the appeal was not relevant. It was formally dismissed.

Cases considered:

Director of Public Prosecutions v Merriman [1973] AC 584; [1972] 2 All ER 42

Minister of Lands v Nai [1999] Tonga LR 135 (CA)

Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77; 139 ALR 27

Statutes considered:

Court of Appeal Act (Cap 9)

Court of Appeal (Amendment) Act 1997

Criminal Offences Act (Cap 18)

Criminal Offences (Amendment) Act 1997

Counsel for applicant: Mr Niu
Counsel for respondent: Mr Havea

Judgment

The applicant has applied to this Court:

• to set aside this Court's decision on the appeal by the Crown against sentence;

• for leave to appeal out of time against conviction;

• for bail pending hearing of the appeal.

The sequence of events

The events to which the charge subsequently brought against the applicant relates are alleged to have occurred between April and October 1995. He was charged with embezzlement. The preliminary hearing in the Magistrates' Court commenced on 9 July 1997 and concluded on 27th August 1997, on which day he was committed for trial in the Supreme Court.

The indictment laid in that Court charged the applicant with embezzlement contrary to s 158 of the Criminal Offences Act (Cap 18). The particulars of offence were:

"That Hanisi Lotomo'ua Misinale did on various occasions between the months of April and October in 1995 take and convert to his own use the sum $47,310.23 the property of others received in the course of his employment as accountant of Primary Produce Export Limited".

Following a trial by jury, he was found guilty on 15th April 1999. He was sentenced by Finnigan J to imprisonment for 3 years, of which he was to serve 8 months, the balance to be suspended for two years from the date of his release.

There was no appeal against conviction. The Crown applied for leave to appeal against the sentence on the ground that it was inadequate. This Court, by a judgment delivered on 23rd July 1999, allowed the application for leave to appeal, quashed the suspension of the balance of the sentence after the respondent had served 8 months, and in lieu thereof suspended the last 12 months of the sentence for two years from the date of his release. To that extent the appeal was allowed.

On 23 July 1999 the applicant applied to Ward CJ, as a judge of this Court, for leave to appeal out of time and for bail pending the hearing of that application and of the appeal. He dismissed both applications without a hearing. On 20th October 1999 the applications now before the Court were filed.

The application to set aside

The application to set aside the judgment of this Court delivered on 23rd July 1999 is founded on a submission that the appeal by the Crown against the sentence imposed in the Supreme Court was invalid, with the consequence that the decision of this Court was also invalid.

At common law the Crown could not appeal against a sentence imposed on the ground that that sentence was inadequate or inappropriate. In Tonga that rule of law was changed by s 17B of the Court of Appeal Act (Cap 9) as inserted by s 2 of the Court of Appeal (Amendment) Act 1997. That section provides:

"17B. The Attorney-General, with the leave of the Court of Appeal, may appeal to the Court of Appeal against any sentence pronounced by the Supreme Court in any proceedings in which the Crown was a party and the Court of Appeal shall determine the appeal in accordance with subsection (3) of section 17."

Mr Niu, counsel for the applicant, (who was not counsel for the applicant in the proceedings in the Supreme Court or in the Court of Appeal) submitted that the section required that the Attorney-General makes the appeal on behalf of the Crown. The Attorney-General, he submitted, was required to consider the matter carefully and independently from the Solicitor General and the office of the Solicitor General, who prima facie acts on behalf of the Crown. In the present case, he contended, there was no appeal or application for leave to appeal made by the Attorney-General. Accordingly there was no valid appeal that this Court could decide, with the consequence that its decision was of no effect.

We accept, as is apparent from the section, that it is the Attorney-General who, with the leave of the Court of Appeal, may appeal against a sentence imposed in the Supreme Court. In the present case, the notice of application for leave to appeal shows the applicant as "Rex", meaning the Crown. The application is signed by "Crown Counsel" and records that it is "Filed by the Solicitor General ..."

Although the Attorney-General is not expressly named in the application, it is clear from its terms that the application is brought by counsel for the applicant, that is the Crown. In view of s 17B, that was in effect an application by counsel for the Attorney-General since, under that section, only the Attorney-General can bring the appeal on behalf of the Crown. The Solicitor General was acting as counsel for the applicant, just as any lawyer acts as counsel for his or her client. As is accepted practice, counsel prepares and signs the application on behalf of the client. In this case Crown Counsel on behalf of the Solicitor General as counsel for the Crown, that is the Attorney General, signed and filed the application. We do not find anything in the section to support the contention that the Attorney General is required to act independently of the Solicitor General or to be named as the party appealing. On the contrary, it is entirely appropriate for the Solicitor General, as the legal adviser to the Crown, to act for the Attorney General, seeking leave to appeal on behalf of the Crown, and for the party appealing to be named as "Rex" meaning the Crown.

Consistent with this approach is Section 197 of the Criminal Offences Act. It provides that all prosecutions under that Act may be brought by the Attorney-General, and that prosecutions under certain specified sections may be brought either by the Attorney-General or the person aggrieved. Thus the Attorney-General is the person who commences criminal proceedings on behalf of the Crown. Similarly, the Attorney-General is the person who brings appeals against sentence on behalf of the Crown. When the Solicitor General applied for leave to appeal in the name of the Crown, he was doing so for the Attorney-General as the representative of the Crown.

For these reasons, we are satisfied that the application for leave to appeal was properly brought. It follows that the decision of this Court granting the application for leave and allowing the appeal in part, was validly made.

Leave to appeal out of time

In support of the application for leave to commence proceedings out of time Mr Niu relied principally on s 160 of the Criminal Offences Act as it was at the time of the proceedings in the Magistrates' Court. That section then provided:

"160. In the case of any person intended to be tried in the Supreme Court for embezzlement, falsification of accounts or fraudulent conversion respectively it shall be lawful to charge the offender by summons at the preliminary inquiry in the Magistrates' Court with any number of distinct acts of embezzlement, falsification or fraudulent conversion respectively not exceeding 5 which have been committed against the same person within the space of six months from the first to the last of such acts and to try the offender in the Supreme Court (if committed thereto for trial) either upon all or any of such charges."

It was Mr Niu's submission that the charge in the present case did not comply with s 160 because it did not specify the distinct acts of embezzlement relied upon, and because, in fact, there were 19 separate acts of embezzlement committed on 19 separate days, whereas s 160 permitted the accused to be charged in respect of not more than 5 distinct acts of embezzlement.

In support of the latter submission Mr Niu relied on three schedules produced by the prosecution. He submitted that the schedules showed that the applicant had taken money belonging to others on 19 different occasions on 19 different days. The schedules, taken on their own and without evidence of what they were intended to represent, do not necessarily establish that there were 19 distinct acts of embezzlement. However, for the purposes of determining this application, we will assume, in favour of the applicant, that each entry in the schedule represented a distinct act.

The schedules were apparently produced by the applicant. On 23rd January 1996 he signed a statement in which he admitted that he had taken the amounts shown in the schedules. These amounts were taken from sums due to persons who had supplied watermelon, squash, and vanilla. At the trial in the Supreme Court the admissibility of this statement was challenged. Following a voir dire it was held to be admissible.

On 11th September, 1997 there came into force the Criminal Offences (Amendment) Act 1997. Section 5 of that Act provided:

"5. Section 160 of the Principal Act is amended by deleting all words after the word "respectively" where it first appears and substituting therefor the following –

", unless there are special reasons, no order shall be made preventing the trial at the same time of any number of such offences not exceeding 5, whether alleged to have been committed within 6 months from the first to the last of such offences against the same person or not. Nothing in this section shall prevent an indictment containing more than 5 counts from being presented.""

This amendment came into force after the proceedings in the Magistrates' Court and before the trial in the Supreme Court. We accept Mr Niu's submission that this amendment does not have retrospective effect. If, therefore, the summons in the Magistrates' Court was contrary to s 160 as it was before the amendment, that result is unaffected by the amendment. But the section as amended is the relevant provision for considering whether the indictment presented in the Supreme Court was defective. We conclude that it was not. Even if the offending involved 19 distinct acts, an indictment charging the applicant with such offending does not contravene s 160 as amended.

Section 160, before and after amendment, is procedural in nature. It does not create the offence. It does not go to the jurisdiction of the Court. Rather it prescribes the procedure to be followed at the preliminary enquiry in the Magistrates' Court when charging a person by summons with distinct acts of embezzlement, falsification or fraudulent conversion. If a summons in the Magistrates' Court, or an indictment in the Supreme Court following committal on that summons, does not comply with s 160, that may be a ground for challenging the summons or indictment on procedural grounds. But if there is no such challenge, the jurisdiction of the Supreme Court to try the indictment, and the validity of any resulting conviction, is unaffected. The present question arises, as we have seen, in a transitional context. When an existing statutory provision is amended, the manner in which the amendment comes into effect is frequently covered by transitional provisions. Where there are no such provisions, [as here] it is necessary for the court to draw such inferences as it considers the legislature intended [see Halsbury's Laws of England 4th Ed [Reissue] vol 44(1) at p 771]; Minister of Lands v Nai [1999] Tonga LR 135 (CA) at 138. In our view, the inference we have mentioned is what the legislature intended.

Although this ground was not expressly advanced on behalf of the applicant, we have given consideration to whether the indictment offended the rule against duplicity, namely that a prosecutor may not ordinarily charge in one count of an indictment two or more separate offences. On the case as advanced by the applicant, there were 19 distinct acts. But that does not necessarily mean that there were 19 separate offences. A leading authority on this issue is the judgment of Lord Diplock in Director of Public Prosecutions v Merriman [1973] AC 584 at 607; [1972] 2 All ER 42 at 59, where he said:

"The rule against duplicity, viz that only one offence should be charged in any count of an indictment, has always been applied in a practical, rather than a strictly analytical, way for the purpose of determining what constituted one offence. Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice ... to charge them in a single count of an indictment."

This statement has been adopted in a number of Australian decisions. In Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77; 139 ALR 27 three of the judges in the High Court considered the rule against duplicity where an employee had been charged with obtaining by dishonest means payments or benefits made under an Act. The count related to payments made to the employee over a period of 12 months. Dawson and Toohey JJ, who on this issue were the majority, considered that the conduct of the employee was a continuing false pretence during that period. If the respondent had regarded the single charge as prejudicial, he could have called upon the prosecution to specify with particularity details of the charge. Where what was involved was one activity of a continuing kind, it was legitimate to bring a single charge.

In the present case, it is apparent from the statement of the applicant that he regarded his activities as a continuing pattern of conduct over the relevant period. He referred to having prepared "... a schedule of deductions from growers' payments", and having covered up missing moneys "by not recording agricultural store sales." It is not surprising that he did not seek further particulars of the charge when he himself had prepared the schedule showing each individual payment that made up the amount stated in the charge. In these circumstances there can be no risk of an injustice in regarding the pattern of conduct as a single criminal enterprise. For these reasons, we do not regard the charge in the indictment to be bad for duplicity.

We add this comment. Even where the actions of an accused can be regarded as a pattern of conduct constituting a single criminal enterprise, it may be preferable, where a number of distinct acts are relied upon, such as where various amounts of money have been taken on different occasions, to lay separate counts in the indictment in respect of each distinct act. This would overcome any need for further particulars, ensure that the judge or jury considers the accused's culpability in respect of each act, and remove any possibility of the indictment being challenged for duplicity at the trial or on appeal.

For the reasons we have expressed, no ground has been made out for extending the time for appealing.

The result

The applications to set aside the decision of this Court delivered on 23 July 1999 and for leave to appeal against conviction are both dismissed. The application for bail pending hearing of the appeal is not now relevant. It is formally dismissed.